The Senate was out of session this week and will return on Monday with votes on nominations before likely pivoting to legislative action. The upcoming work period is five weeks long, and runs through November 17, the week before Thanksgiving; it is also the date on which the current continuing resolution (CR) funding the government expires. Members last left town a week ago, prior to the terrorist attacks on Israel, and return with a lot of open items. While most activity in the House is on hold due to ongoing leadership fights, below is what to expect in the Senate during the upcoming work period.
Nominations. The Senate returns on Monday at 3:00 p.m. and at 5:30 p.m. will vote on the motion to invoke cloture on the nomination of Jennifer L. Hall, to be US District Judge for the District of Delaware. The Senate is likely to spend Tuesday completing action on the Hall nomination as well as those of Julia Kathleen Munley, to be US District Judge for the Middle District of Pennsylvania; and Karla Ann Gilbride, to the General Counsel of the EEOC (four year term). Cloture was filed on each of these nominations prior to the recess.
It is likely that the Senate will pivot to appropriations next week once those nominations are dispensed with (more on that below); however, we should also expect a heavy dose of emphasis on national security- and diplomatic-related nominations over the course of the work period. For example, the Administration has recently sent up paperwork for Jack Lew to serve as Ambassador to Israel; there are additional ambassadorial posts pending to various countries in the Middle East. In addition, there will be more noise surrounding the issue of confirmation of promotions of flag officers, currently held by Sen. Tommy Tuberville.
Appropriations. The Senate left town on the cusp of locking in an elusive unanimous consent (UC) agreement to take up and process a three-bill minibus appropriations measure that includes the Military Construction/Veterans Affairs; Agriculture; and Transportation/HUD funding measures for FY24. Leadership on both sides of the aisle are working to get that agreement locked in so as to be able to begin consideration next week. A list of roughly 25 amendments has been hotlined for votes as part of the notional UC; this hotline does not include contentious amendments on swipe fees or credit card interest rates that some members had sought prior to the recess.
NDAA. The Senate will likely act in the near future to formally appoint conferees to the FY24 National Defense Authorization Act (precise timing remains TBD). Moving to conference will require voting on a host of motions to instruct (MTI) conferees, which are non-binding on the conferees but function as messaging opportunities and can cover a wide range of subject matter. UC is necessary to limit the MTIs and related procedural votes. The House has already appointed conferees and pre-conference negotiations on the substance of the NDAA are underway.
Additional items that may be considered in the coming weeks include:
- Supplemental Appropriations. A supplemental will be necessary for Israel, Ukraine, and possibly disasters. Republicans will want to address border security as part of a funding package. Before the Senate can begin the process of moving such legislation, the Administration needs to formally submit a supplemental funding request, and we expect such a request to be sent sooner than later given various security exigencies. Of course, the House will have to decide what it is willing to do on these fronts as well, a notion that remains undetermined as the leadership vacuum continues, and with a growing number of House Republicans hostile to further funding Ukraine.
- Additional Appropriations Measures. If the Senate is able to process the first minibus, it remains possible that another minibus will follow on the floor at some point during the work period, though it remains to be determined which bills would be up next. Note that the Senate has shell bills in the form of House-passed State/Foreign Operations as well as Defense appropriations measures to work with. It is always possible that other bills could be part of the discussion as well. As with the initial minibus, consent will be necessary to package bills together into minibus form due to the fac that the underlying House bills are single bill measures.
- Continuing Resolution. The CR expires November 17, and the volatile situation in the House makes it hard to predict an outcome. However, there will be support in the Senate for another CR of some duration—possibly into December or into the early part of 2024—so as to give Congress time to complete its work on spending bills for FY24. Note that the one percent sequester, enacted as part of the McCarthy-Biden debt limit agreement legislation (“Fiscal Responsibility Act”), is triggered in January unless all appropriations measures are enacted. The one percent cut is based off of FY23 spending levels and does not take effect until the end of April 2024.
- SAFER Banking. Of the various additional bills Leader Schumer has stated he would like to bring to the floor, the SAFER Banking (cannabis banking) seems to be the lead contender for floor time in the coming weeks and months. Despite three Republicans voting to report the bill out of the Senate Banking Committee, there are concerns throughout the Republican Conference with the bill, and it is unclear if it could garner 60 votes. If it is to pass, revisions are likely as compared to the committee-reported bill. If SAFER does come to the floor, Republicans will likely seek amendment votes on a variety of topics; additionally, Senator Marshall could seek a vote on the Credit Card Competition Act.
- FAA Authorization. The Federal Aviation Administration (FAA) authorization, which expired on September 30, was extended through the end of December by the last CR. Unless something changes, it will need to be extended again by the end of the year as the legislation remains stalled in the Senate Commerce Committee, primarily due to disagreements over pilot training requirements. If Commerce is able to report the bill, which seems unlikely at present, it could be a contender for Senate floor time this fall.
OUTLOOK/ANALYSIS. While the House is receiving most of the attention at present, the Senate, on a bipartisan basis, is going to do its best to work through the chaos in order to respond to urgent national and international priorities. How far they get depends on the will of the Senators to work cooperatively. Of course, the House remains the biggest unknown, but the hope for the next five weeks in the Senate is to act and be ready to negotiate with the House as soon as the House is ready to do so.